Jack v. Eldorado Casino Shreveport Joint Venture

Citation: 264 So. 3d 599Docket: No. 52,454-CA

Court: Louisiana Court of Appeal; January 15, 2019; Louisiana; State Appellate Court

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Defendants Eldorado Casino Shreveport Joint Venture and its affiliates appeal the denial of their motion in limine and the judgment from the First Judicial District Court, Caddo Parish, Louisiana, which awarded damages to plaintiff Yasheka Jack. The case stems from Jack's injury on November 9, 2013, when a beverage server, Denise Ramone, spilled hot coffee on her, causing a back injury. Jack filed for damages on October 3, 2014, and Eldorado asserted that Jack's injuries were caused by another party.

Eldorado sought to exclude evidence of Jack's medical expenses that were written off, arguing that the collateral source rule should not apply since Jack had no obligation to pay the full amount. The trial court denied this motion, affirming the applicability of the collateral source rule to the write-offs negotiated by Jack’s insurance, which she had been paying premiums for. Consequently, the medical records presented at trial reflected the full amount of medical expenses incurred by Jack.

During the trial, which commenced on September 11, 2017, 11 witnesses testified. Jack's motion for a directed verdict on comparative fault was denied. On September 14, 2017, a jury unanimously found Ramone negligent and the sole proximate cause of Jack's injuries, assigning 100% fault to her. The jury awarded Jack a total of $1,429,928.70 across various categories, including past and future medical expenses, lost wages, and pain and suffering.

Eldorado's post-trial motion for judgment notwithstanding the verdict was denied, with the court noting that the jury's assessments were based on credibility determinations. The court also indicated that without specific evidence of the write-offs, it could not reduce the jury's award for medical expenses. Eldorado's appeal includes three points of error regarding fault assignment, the future lost wages award, and the application of the collateral source rule to the insurer-negotiated write-offs.

Eldorado challenges the jury's credibility assessments regarding witness testimony, emphasizing that appellate courts must show great deference to a trial court's factual findings, especially those based on witness credibility. Under the manifest error standard, a jury's factual determinations can only be reversed if the appellate court finds no reasonable basis for the findings and deems the factfinder clearly wrong. If witness testimony is contradicted by documents or is internally inconsistent, a finding may be deemed manifestly erroneous. However, if the factfinder simply favors one credible witness over another, such findings are rarely overturned.

In its first assignment of error, Eldorado contests the jury's decision to assign 100% fault to its waitress, Ramone, arguing that her uncontradicted testimony regarding the accident's cause should have been accepted. The trial court's fault assessments are also factual and can only be overturned if clearly wrong. 

Testimony revealed that Jack, who was injured by hot coffee, was sitting with her aunts at Eldorado Casino. She described the incident in detail, identifying Ramone as the waitress who spilled the coffee but noted she did not see what caused the spill. Ramone testified on cross-examination about her method for balancing drinks on her tray, which is vital for preventing spills, particularly when hot coffee is involved.

Ramone testified that it was her duty to monitor rowdy patrons, who were expected to make sudden movements, such as jumping out of their chairs. Leading up to Jack's injury, she noted that the coffee on her tray was still steaming, but she could not confirm if it remained centered on the tray due to multiple deliveries and pickups. When entering the aisle, she observed Jack seated on the left and an unidentified patron on the right. The unknown patron stood up, causing their chair to slide back and bump into Ramone's hip, which led her to lose her balance and stumble toward Jack. This resulted in the drinks toppling over and spilling hot coffee onto him. Ramone stated that the patron's action was normal and unexpected, making it impossible for her to anticipate the bump. After the incident, the unknown patron helped clean up the spilled drinks. Although surveillance video was reviewed, Ramone indicated it did not capture the actual accident but showed the moments before and after. She did not obtain the unknown patron's contact information, deeming it unnecessary.

Mary Williams, who was with Jack, confirmed their seating arrangement but could not recall the exact location of Tolonia Bryant, her sister. Williams stated she did not witness anyone approaching the scene after the accident to claim responsibility. On cross-examination, she admitted not seeing what caused Ramone to spill the drinks. Tolonia Bryant, sitting behind Jack and Williams, testified that she saw Ramone stumble but did not see anyone bump into her. Bryant described Ramone's fall as sudden, and while she was reading prior to the incident, she did not observe any interactions that would have led to the spill. During cross-examination, she acknowledged that she could not confirm whether someone had bumped into Ramone.

The jury's determination that Eldorado was 100% at fault for Jack's injuries at the Eldorado Casino was not manifestly erroneous or clearly wrong. Eldorado claimed that Ramone's uncontradicted testimony should negate a finding of full fault against it; however, the surveillance video and testimonies from witnesses Bryant and Williams contradicted Ramone's account. They confirmed that no patron bumped into Ramone, nor did anyone assist after the spill. The surveillance footage, which Eldorado provided, lacked clarity and suspiciously omitted the accident, further undermining Eldorado's credibility. The jury found Jack and her witnesses more credible, and it resolved conflicting testimonies in her favor, making their finding reasonable.

Regarding the award for future lost wages, Eldorado argued that the jury erred by awarding damages despite evidence suggesting Jack could return to work with accommodations. However, the assessment of loss of earning capacity is inherently speculative, and the jury enjoys significant discretion in this regard, provided there is a factual basis for the award. Jack's testimony indicated she was the office manager at Velocity Care, earning approximately $33,000 annually and managing significant responsibilities. She had a diverse work history and was pursuing a degree at the time of her injury but had to withdraw due to pain. Following her injury and surgery in November 2015, which involved a two-level lumbar fusion, her capacity to work was compromised, justifying the jury's future wage loss award.

Jack continues to suffer from lower back pain and pressure post-surgery, with her pain worsening with increased activity. She receives injections in her sacroiliac joints and remains unable to return to work, despite expressing a desire to do so for enjoyment and financial reasons. Jack experiences discomfort in all positions—sitting, standing, or lying down—and cannot perform her previous duties at Velocity Care, which involve significant physical demands. She indicated that assistance would be necessary to complete her tasks, which she likely would not receive, making her presence at work impractical.

Jack last worked in October 2015 and has not been cleared by her doctor, Dr. Kerr, to resume employment; she has not consulted him since December 2016. Although she applied for Social Security disability and was denied, she did not seek accommodations from her employer or apply for other jobs.

Dr. Kerr, an orthopedic surgery expert, testified via video deposition that he has treated Jack since July 2014, diagnosing her with a disk bulge at L5-S1 and an annular tear at L4-5. He performed a lumbar fusion on November 20, 2015, which he deemed successful, though he noted that such surgery typically provides only 70-75% relief. Following the procedure, Dr. Kerr recommended further injections and pain management, indicating that Jack still experiences pain and may require additional surgery.

Dr. Larry Stokes, an expert in vocational rehabilitation and life care planning, assessed Jack's employability and daily living challenges. He reviewed her medical history and job experience, noting her reliance on her children for assistance with daily activities. Stokes concluded that Jack's previous job at Velocity Care, where she earned $33,000 annually, was her highest employment level, and confirmed that no doctor has released her to work. He expressed that Jack is not employable at the time of trial and likely cannot return to her former role.

Jack is currently deemed to have no earning capacity, facing a total loss of income for her remaining work life expectancy. Dr. Stokes testified that her potential future employment could be limited to part-time, light office management roles, estimated to yield earnings between $8,507 and $11,242 annually, resulting in a potential yearly loss of $21,757 to $24,492. He noted Jack is still undergoing treatment and education, making her long-term work prospects uncertain. Dr. Stokes reviewed reports from Dr. Carl Goodman and Steve Allison, the latter concluding that Jack lacks the residual functional capacity for full or unrestricted light or sedentary work. He emphasized that substantial modifications to her work environment would be necessary for her to maintain employment. Dr. Stokes, not being a medical doctor and without performing a physical exam on Jack, based his opinions on information from Dr. Kerr and the functional capacity evaluation conducted by Allison. 

John W. Theriot, an expert in forensic economics, testified regarding Jack's economic loss due to her injury. He analyzed her earning records and compiled a report estimating her future lost income based on a work life expectancy of 19.24 years, considering her age of 41 at trial. Theriot calculated her potential salary at $39,766, arriving at an estimated future loss of earnings of $692,802 after accounting for investment earnings and inflation.

Theriot calculated Jack's future earnings losses based on various work scenarios: $496,945 if returning part-time, $301,069 if returning full-time at $22,485 annually, and $574,925 if not returning at all. The calculations used a base wage of $33,000, differing from the potential earnings had Jack completed her associate degree. Theriot utilized a current work life table, criticizing Eldorado's economist for relying on outdated tables, including one that was 20 years old. During cross-examination, Theriot indicated he relied on vocational experts regarding Jack's ability to work.

Dr. Carl Goodman, an orthopedic expert for Eldorado, conducted an independent medical examination and concluded Jack likely suffered a small annular tear but did not require further treatment beyond pain management. He acknowledged Jack would struggle with her office manager job due to her back injuries and would likely miss work in the future, agreeing that she sustained a permanent injury from the incident.

Dr. Steve Allison, a functional capacity evaluation expert, performed an assessment of Jack's physical abilities, finding limitations such as a moderate limp and painful lumbar spine motions. He stated that while Jack had some functional limitations, she could return to full-time sedentary to light work with restrictions, specifically tolerating 5.25 hours of sitting per day but needing to stand periodically. He noted that job demands vary significantly across different occupations.

Jack was described as performing medium work at Velocity Care, requiring her to handle physical tasks like moving boxes of paper. To return to her former position, she would need accommodations for various physical activities, including carrying, lifting, and pushing boxes, as well as sitting, standing, and walking. Dr. Allison noted that Jack's account of her duties did not align with the typical responsibilities of an office manager, nor did it match the classification in occupational titles, indicating she lacked the functional ability to perform a significant portion of her former role. He concluded that Jack had likely reached maximum functional improvement, suggesting her work restrictions should be deemed permanent. 

Kristan Gilliam, Jack's supervisor, confirmed her reliability and good standing as an employee, noting her responsibilities included training receptionists and managing patient-related issues. Kenneth Brister, a vocational rehabilitation expert, assessed Jack's situation by reviewing her medical and employment records, interviewing her, and conducting a transferable skills analysis. He concluded that Jack could return to work in sedentary to light-duty roles, with some limitations, and identified potential positions, including receptionist, unit clerk, and medical coder, that she could perform, emphasizing the flexibility of the office manager role to accommodate her needs. Brister also noted a growing willingness among employers to provide necessary accommodations.

Brister testified that Jack is capable of working in various clerical positions but did not create a life care plan for her, nor did he assess her future medical needs. He acknowledged he was not present for Dr. Goodman's live testimony, and while he reviewed Dr. Goodman's report, he did not rely on it because it lacked an opinion on Jack's ability to return to work. Brister also omitted Dr. Kerr's suggestion that Jack might need further surgery from his report, attributing this to oversight. He determined that Jack had not been cleared for unrestricted sedentary work and noted her pain level prevented her from fulfilling her job responsibilities even with self-accommodations. Brister opined that Jack had not suffered a loss of earning capacity, although he would reconsider this if both her treating physician and an independent medical examiner indicated she could not return to work. He acknowledged that loss of future earning capacity could result if Jack could not complete her degree due to the accident.

Tim Shaughnessy, an expert economist for Eldorado, assessed Jack's claim and calculated her future lost wages by comparing her anticipated earnings before and after the injury, translating that difference into present value. He concluded, based on Brister's testimony, that Jack had no loss of earning capacity or future earnings.

The jury's award for future lost wages was deemed neither manifestly erroneous nor clearly wrong, despite Eldorado's claim of overwhelming evidence suggesting Jack could return to work. The comprehensive record showed that Jack continues to seek treatment for her pain, and there was no definitive evidence indicating her capability to resume full-time work without accommodations. The jury's award was supported by credible evidence that Jack still experiences significant pain, making it challenging or impossible for her to return to her previous employment without assistance.

Jack is unable to safely perform her previous duties as office manager or any physically demanding work due to permanent injuries. Testimony indicated that her injuries will likely result in future lost wages. The jury had two possible interpretations of the evidence regarding Jack's earning capacity: either she can earn the same income as before her injury, or she cannot. They chose to credit Jack's experts, determining that her injuries would continue to affect her work ability, justifying an award for future lost wages. The jury's award was less than half of the highest estimate of Jack's future lost earnings, reflecting their discretion in this inherently speculative area. 

Eldorado challenged the trial court's application of the collateral source rule concerning Jack's written-off medical expenses. However, Eldorado did not proffer evidence of the unredacted medical bills after the trial court denied their motion in limine, leading to a waiver of their right to contest this issue on appeal. Consequently, the trial court's ruling stands, affirming the judgment in favor of Jack and assessing all appeal costs to Eldorado. The total damages awarded to Jack amount to $1,429,928.79, although this figure does not match the individual awards listed on the jury's verdict form.